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November 17, 2007

The impact of the execution moratorium on victim's family

CNN has this new piece showcasing the impact of the Baze execution moratorium on the family of one murder victim. Here is a snippet:

The call. He expected it. Dreaded it. But he didn't hesitate to answer. Junny and Vicki Rios-Martinez have been waiting since 1991 to see Mark Dean Schwab executed.

When Junny Rios-Martinez's cell phone rang Thursday afternoon, he and his wife were in their car, getting the family together on their way to witness the execution of their son's killer scheduled for that night. "It was a woman from the governor's office. She told me there was a stay."...

Mark Dean Schwab, 38, won a stay from the Supreme Court hours before he was scheduled to be put to death. When Rios-Martinez hung up, no one said a word.... Junny and Vicki Rios-Martinez had been waiting for more than 16 years to see their son's killer executed. Now, they'll have to wait even longer. The Supreme Court is reviewing whether executions by injection violate the Eighth Amendment to the Constitution, which prohibits cruel and unusual punishment....

Rios-Martinez said the delay gives him just one more reason to be fed up with a criminal justice system he feels has let him down. "People tell me I'm full of anger. Why shouldn't I be? My son was my life. He was the light of my eyes. I loved him more than anything," said Rios-Martinez.

Dyslexic doctor of death involved in federal LI protocol

As detailed in posts here and here, I have long been wondering why federal officials have so willingly postponed federal executions during all the litigation over state execution protocols. Now, thanks to this article from the St. Louis Post-Dispatch, the mystery may be clearing up:

The doctor barred by a federal judge from performing executions in Missouri is part of the federal government's secret execution team at its death chamber in Indiana, according to court documents filed in a death penalty appeal.

Dr. Alan Doerhoff testified anonymously in federal court in Kansas City in June 2006 that dyslexia caused him at times to confuse numbers, give inconsistent testimony and call drugs by the wrong name. As a result, U.S. District Judge Fernando Gaitan Jr. ordered a temporary halt to Missouri executions, saying he had concerns that the condemned might be subjected to unconstitutionally cruel punishment.

Doerhoff remained anonymous until the Post-Dispatch reported his name the following month and revealed that he had been sued for malpractice more than 20 times, denied staff privileges by two hospitals and reprimanded by the state Board of Healing Arts for failing to disclose the lawsuits to a hospital where he was treating patients.

The allegations that Doerhoff was involved in federal executions surfaced in a legal filing in September, amended last month, in the appeal of James Roane Jr. He was sentenced to death in February 1993 for his participation in a series of drug-related murders in Richmond, Va.

Apparently this story was first broken by Henry Weinstein in this LA Times article, and this AP story suggests that the feds hired the dyslexic doc after his questionable abilities were known. Yeesh!

Providing yet another example of Blakely principles being dishonored, the Fifth Circuit yesterday in US vs. Newsom, No. 06-10822 (5th Cir. Nov. 16, 2007) (available here), approves an upward departure based on uncharged conduct with only a remote connection to the offense of conviction. Here are key snippets from the Newsom ruling:

Newsom argues that the district court erred when it upwardly departed at sentencing pursuant to § 5K2.21 based on his uncharged conduct involving drug distribution and unlawful firearms possession. He contends that § 5K2.21 permits an upward departure for uncharged conduct only if the conduct is related to the offense of conviction [which in this case involve theft of explosives]. We have only addressed § 5K2.21 generally in a limited number of cases, and so Newsom’s appeal presents an issue of first impression for our court....

[W]e join those other circuits, such as the Eighth Circuit, in interpreting § 5K2.21 as requiring some degree of connection between uncharged and charged offenses, although even a remote connection will suffice. Turning to the facts of this case, we conclude that Newsom’s argument is without merit. Newsom’s uncharged conduct involves drug distribution and illegal firearm possession. Given that Newsom and his co-defendants, Hardin and Garrett, had a history of trading guns for drugs, and were all high on drugs the night they stole the explosives, we find that there is a sufficient connection between the uncharged and charged offenses.

November 16, 2007

A significant (unpublished?!?!?) Second Circuit Rita ruling

The Second Circuit today has a lot of effective sentencing analysis in its unpublished(!?!) ruling in US v. Baker, No. 05-4693 (2d Cir. Nov. 16, 2007) (available here). The summary order reverses for lack of adequate explanation a within-guideline sentence by stressing the importance of giving sentencing reasons after Booker and Rita. Here are some snippets from a strong opinion that, in my view, should be published:

Sentencing judges are not relieved of their obligation to provide their rationale for sentencing because they impose a sentence within the Guidelines.... The increased discretion granted to judges by the Booker decision only amplifies the importance of articulating the reasons for a particular sentence and requires sentencing judges’ compliance with § 3553(c)’s requirements.

Here, although Baker argued that he was entitled to a sentence below the Guidelines range and raised numerous arguments to that effect, the district court made clear from the outset of the sentencing hearing that it would only consider a sentence within the Guidelines. The district court did not articulate why a Guidelines sentence was appropriate....

Baker specifically argued that there are no findings by Congress or the Sentencing Commission to support the assumption that people who possess or transport child pornography are likely to engage in the sexual victimization of children, and that, when crafting the heightened Guidelines range for these offenses, the Sentencing Commission failed to consider this fact. The district court’s reticence to discuss how Baker’s conduct fits within the range of child pornography offenses targeted by the Guidelines is especially problematic in light of its specific finding that there was no evidence that Baker engaged in any sort of sexual abuse.

Given the circumstances presented by Baker’s case, as well as the non-frivolous arguments made on his behalf for a below Guidelines sentence, at the very least, the district court needed to articulate why it did not consider or choose a non-Guidelines sentence. Even though the district court stated that it had considered the § 3553(a) factors, that it was not bound by the Guidelines and that it found a sentence within the Guidelines to be “necessary, reasonable, and appropriate to address the nature and seriousness of the offense, the criminal history category, and the characteristics of the [d]efendant to serve the overall objectives of punishment, general deterrence, incapacitation, and rehabilitation,” there is nothing in the record which showed that the district court actually complied with these statements.

This was not a “typical case” where “the context and the record make clear” the reasoning underlying the judge’s conclusion. Rita, 127 S. Ct. at 2468-69. The district court’s lack of analysis of the positions presented by defense counsel and relevant under § 3553(a) precludes proper appellate review of the reasonableness of Baker’s sentence.

Thanks to How Appealing's post here, I see that the Sixth Circuit today split in Doe v. Bredesen, No. 06-6393 (6th Cir. Nov. 16, 2007) (available here) over a challenge to the application of Tennessee's new GPS sex-offender tracking rules. This first paragraph from the partial dissenting opinion by Judge Keith provides an effective review of the holding and the terms of the debate:

The crux of the matter before us concerns Tennessee’s Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004.... Doe, a convicted sexual offender, alleges that the Registration Act and the Surveillance Act violate the Ex Post Facto Clause of the United States Constitution. Specifically, Doe takes issue with (1) the retroactive application of the Registration Act (§ 40-39-207(f)(1)(B)), which requires Doe to register with the Tennessee sexual offender registry for the remainder of his life, and (2) the enactment and retroactive application of the Surveillance Act (§ 40-39-301 et seq.), which allows the Tennessee Board of Probation and Parole to enroll Doe in a “Satellite-Based Monitoring Program” to monitor (via a global positioning system (“G.P.S.”)) his movements while on probation. Because our Circuit has foreclosed Doe’s argument with respect to the Registration Act, see Cutshall v. Sundquist, 193 F.3d 466, 476-77 (6th Cir. 1999), I concur with the majority’s dismissal of this claim. However, as to the Surveillance Act, I strongly disagree with the majority’s decision to affirm the district court’s dismissal of this claim. I cannot, in good conscience, join my colleagues’ opinion which finds no constitutional violation in requiring Doe to wear a relatively large box as a symbol of his crime for all to see. The Surveillance Act, particularly the satellite-based monitoring program, as applied to Doe, is punishment, excessive, and indeed, the modern day “scarlet letter.” I vigorously dissent.

It is only a matter of time before all the circuits will be having to weigh in on similar legal issues surrounding GPS tracking. The long-term question is not whether these issues will come before the Supreme Court, but rather when and how.

Mark your 2008 SCOTUS calenders

This post at SCOTUSblog notes that the Supreme Court "will open its January sitting with the argument on constitutional issues surrounding the lethal injection method of execution. The Court on Friday released the calendar for the session beginning Jan. 7, with Baze v. Rees (07-5439) scheduled at 10 a.m. that first day. That is the Kentucky case raising three issues about the three-drug protocol for execution, now used in 36 states."

The post also highlights that on Tuesday, January 15, the Court will be hearing two ACCA cases:

"I want to be a sentencing expert"

Now I can retire happy because, as I was watching ESPN2 this morning with my cup of joe, I got to see both Mikes on Mike & Mike in the Morning make fun of me as a "sentencing expert." Specifically, Mike Greenberg started talking about my assessment of Bonds' likely sentence if convicted by asking "where'd he get this job?" Greeny went on to say, "I want to be a sentencing expert," and Mike Golic followed up by saying "That's the job to have!"

Okay, Mikes, here is an offer: Both Mikes have an open invitation to have my job (and salary) for a day or even a week if I can have either of their jobs (and salary) for even a few hours. Heck, I'll forgo the salary part if they'll just invite me to hang out at ESPN's studios for a little while.

For more serious analysis of Barry Bonds' indictment, How Appealing collects coverage here.

November 15, 2007

Louisiana and amici file SCOTUS briefs in capital child rape case

As detailed in this long and thoughtful post at SCOTUSblog, Lyle Denniston reports on the breif filed by the state of Louisiana defending its statute making child rape a death penalty eligible crime. Here are snippets of the post (with a link to filings):

Louisiana officials have urged the Supreme Court to allow the state to continue to seek the death penalty for those convicted of child rape. In a brief in opposition (found here) filed on Wednesday, the state argued that there is a distinct trend across the country to impose death sentences for crimes that do not result in death of any victim. In addition, it said, more states are opting to pass laws to make child rape a capital crime....

Arguing that such a sentence fits the crime, the state said that “the harm inflicted upon a child when raped is tremendous,” and that “sex offenses against children cause untold psychological harm not only to the victim but also to generations to come….Execution of child rapists will serve the goals of deterrence and retribution as well as the execution of first-degree murderers.”

[Defendant] Kennedy’s appeal is now supported by the National Association of Social Workers and a group sexual assault crisis centers, arguing that the Louisiana law goes too far by providing for a possible death sentence for any act of oral, anal or vaginal sex with a child under age 13 and thus will encourage offenders “to kill their victims.” Another amicus, the National Association of Criminal Defense Lawyers, argued that the unreliability of child victim testimony makes it “far too likely” that the death sentence may actually be imposed on the innocent. A group of public defenders in Louisiana also supported the appeal, arguing that they must prepare to defend anyone accused of child rape as if it were a capital case, even though prosecutors often reduce the charge to a non-capital offense; public defenders thus must spend limited resources in cases that may never turn out to be capital, after all. Thus, they contended, they need the uncertainty over the validity of the Louisiana law cleared up as soon as possible. The briefs of amici can be found here and here and here.

Barry Bonds indicted, what would be his guideline range?

Just when you thought it was safe to read the sports pages without having to think about sentencing issues.... Today, as detailed in this AP story, "Barry Bonds was indicted Thursday for perjury and obstruction of justice, charged with lying when he told a federal grand jury that he did not knowingly use performance-enhancing drugs."

I have already gotten a call from the media asking what sort of sentence Bonds might face, so I'd appreciate reader help in figuring out what federal sentencing guideline range would apply were the modern Home Run King convicted of all the allegations in the indictment. Of course, before doing any of this analysis, I could not help but think about the sentences that Victor Rita and I. Lewis Libby received for lying to a grand jury. Specifically, Rita got a 33-month (within-guideline) sentence for his lies and his sentence was affirmed as reasonable by the Supreme Court. Libby got a 30 month (within-guideline) sentence for his lies and his entire prison term was commuted by President Bush.

UPDATE:Here is the New York Times coverage of the indictement, as well as a link here to the indictment itself.

SCOTUS stays Florida execution

Continuing its Baze-ian de facto moratorium on executions, the Supreme Court has stayed a Florida execution scheduled for later today. This AP story has the details:

The U.S. Supreme Court halted Florida's execution of convicted child killer Mark Dean Schwab on Thursday. The move by the high court was widely expected as it considers the appeals of two Kentucky inmates challenging the same lethal toxic three-drug combination used in Florida.

The stay was issued about four hours before Schwab was scheduled to die for the 1991 kidnapping, rape and slaying of 11-year-old Junny Rios Martinez. It will remain in effect until the Supreme Court rules on the Kentucky case.

An academic amicus Note for the Sixth Circuit on acquitted conduct

As noted in prior posts here and here and here, the Sixth Circuit is currently considering en banc review of the continuing use of acquitted conduct as a sentencing enhancement after Booker in the wake of a panel's notable per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here). Though some commentators seem to think only the Supreme Court should be giving acquitted conduct issues second thought, a recent sudent note available here from SSRN lays out a thoughtful case that Watts is not the end of the story for this issue. The Note by James Bilsborrow is entitled "Sentencing Acquitted Conduct to the Post-Booker Dustbin," and here is the abstract:

Robert Mercado was an alleged member of the Mexican mafia operating in Los Angeles. He was charged, tried by a jury, and subsequently convicted on several counts of drug conspiracy. But Mercado was acquitted of the most serious charges: participation in multiple murders, violent crimes in the aid of racketeering, and assault with a deadly weapon. When the district court judge calculated Mercado's sentence under the Federal Guidelines, however, he obliged the prosecution request to consider Mercado's liability in the offenses for which the jury returned acquittals. As a result — and in spite of the jury's verdict — Mercado's Guidelines sentence increased by seventeen years. The Ninth Circuit later affirmed this sentence increase.

Although judicial consideration of acquitted conduct — conduct for which an offender has been charged and acquitted by a jury — may strike non-lawyers as confusing, the practice is not only quite common, but was specifically sanctioned by the Supreme Court in United States v. Watts in 1997. Ten years later, however, the Court's sentencing jurisprudence is radically changed; beginning with Apprendi v. New Jersey in 2000, and continuing through its recent invalidation of the California state guidelines system in Cunningham v. California, the Court has steadily invalidated modern guidelines sentencing practices as violative of the Sixth Amendment right to a jury trial. In short, the Court has held that guidelines regimes often unconstitutionally transfer a disproportionate amount of fact-finding power from the jury to the judge. This Note argues that judicial consideration of acquitted conduct is one such aspect of guideline sentencing that the Court's recent jurisprudence renders unconstitutional. Consequently, not only is Watts no longer controlling, but so also is the commonplace practice that allows a judge to replace a jury determination of guilt with his own.

Because they so frequently second guess sentencing judges, I often wonder if the circuit judges on the Eighth Circuit really have a secret desire to be district judges with the primary task of imposing sentences. The latest example of circuit sentencing second-guessing comes in US v. Donna Peterson, No. 06-3916 (8th Cir. Nov. 15, 2007) (available here). Here is the unofficial summary from the Eighth Circuit's opinion page:

[Riley, Author, with Wollman and Hansen, Circuit Judges] Criminal Case - sentencing. Following remand for resentencing, district court sentenced to two concurrent 68-month terms of imprisonment, representing a 50% downward departure and 7-level downward reduction. Case is remanded for resentencing because district court's imposition of sentence below statutory minimum, although based only on substantial assistance considerations, was nonetheless unreasonable because extraordinary circumstances were not present.

Some recent related posts on the Eighth Circuit's reasonableness work:

A major report examining America's exploding prison system population will be released on Nov. 19 at the National Press Club. The report, co-authored by nine leading criminology and penal experts, recommends significant reforms to the criminal justice system in order to reduce the prison population. Recommendations include reducing length of stay in prison and eliminating prison time for technical parole and probation violations. The National Press Club event will include a panel discussion with experts from the corrections, sentencing, academic and public policy fields, moderated by nationally syndicated columnist Clarence Page...

The report is being released by the JFA Institute, a Washington nonprofit organization focused on research-based solutions to criminal justice issues.

Eleventh Circuit green lights Florida execution; SCOTUS on deck

As explained in this 11-page per curiam order, an Eleventh Circuit panel this morning has vacated the stay of execution granted yesterday by a federal district judge to allow Florida to (try to) go forward with an execution scheduled for 6pm this evening. Of course, this decision will surely be appealed to the Supreme Court (which has related papers before it, too), and I would predict the Justices keeping their de facto moratorium in place. But, one never knows.

Is the US impeding certain Iraqi executions?

This interesting piece in today's New York Sun, entitled "U.S. Sparks Row Over Iraqis Set For Execution," hints that the US is hindering the ability for Iraq to go forward with scheduled executions. Here are snippets:

The American administration in Baghdad has sparked a diplomatic row with Prime Minister al-Maliki of Iraq by refusing to hand over for execution three war criminals convicted of genocide, including a cousin of Saddam Hussein's known as "Chemical" Ali....

While Mr. Maliki insists that the execution should go forward without delay, the presidential council has a different view. Under Iraqi law, the council must sign the execution warrants before the hangings are carried out, but the constitution doesn't rule on what happens if they fail to agree on the sentence....

The American Embassy in Baghdad insists that the fate of the three men is in the hands of the Iraq government and that until the legal dispute is resolved, it will keep the trio in coalition captivity.

November 14, 2007

Opposition to considering acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would "strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)." This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).

As detailed in this post, last month an en banc petition was filed in White and I am eagerly hoping the White panel will convince the majority of the Sixth Circuit to take up the acquitted conduct issue. Last week, the government filed its brief opposing en banc review in White. I received a copy of that opposition, and it can be downloaded here:

Not suprisingly, the government asserts that the defendants claims are foreclosed by the Supreme Court's Watts decision a decade ago. But, as I have suggested in a number of prior posts, I do not think Watts ends this debate in the light of Blakely and Booker and Rita.

UPDATE: Because some commentors seem to think Watts ends this debate, it is valuable to remember that Booker clearly explains that Sixth Amendment issues were not raised on addressed in Watts. Moreover, the fact that Watts indicates that it is not per se unconstitutional to enhance sentences based on acquitted conduct in some cases does not logically entail that it is always constitutional to enhance sentences based on acquitted conduct in all cases.

Prison over-crowding problems in Ohio

My local Columbus Dispatch had this article this morning noting the crossing of a numeric milestone in Ohio's prison population. Here are snippets:

Imagine if every man, woman and child in Mansfield disappeared. All 50,000 of them. An entire city, gone. That's how many inmates were jammed into Ohio 32 prisons yesterday -- 50,016. It set an all-time high for the Ohio Department of Rehabilitation and Correction.

Prisons chief Terry Collins, the man who must cope with keeping that many prisoners locked up, fed and clothed in space designed for 75 percent of that number, said the record is nothing to celebrate. "Our projections are that it's going to continue to climb," he said. "We think we'll hit 52,000 by this time next year."

Significant is a recent surge in that population -- 6,500 since February 2005. That came after a period when the prison population declined. Each prisoner costs Ohio taxpayers about $25,000 a year. The crime rate isn't up appreciably, but the court system and prisons are jammed with increasing numbers of nonviolent, short-term offenders, many of them drug offenders, Collins said....

[T]he General Assembly, as part of the biennial budget, convened a commission and allocated $50,000 for a consultant to reappraise the situation. The committee will take public testimony Friday in Lima. The Ohio Civil Service Employees Association, the union representing corrections officers and other prison workers, has long said that overcrowding threatens security in state prisons.

The latest (halting) execution news from Florida

Over at SCOTUSblog here, Lyle Denniston has the latest news from Florida, where state official are trying to go forward with a lethal injection scheduled for tomorrow evening. Here are highlights from Lyle's report:

U.S. District Judge Anne C. Conway in Orlando on Wednesday blocked the execution by lethal injection of Mark Dean Schwab, until after the Supreme Court rules in a pending Kentucky case challenging the same three-drug protocol. “The overriding consideration in this case,” the judge ruled, “is that some of the very same issues Plaintiff presents here are currently pending for decision before the Supreme Court of the United States,” citing the case of Baze v. Rees (docket 07-5439). “Not only is the Supreme Court poised to clarify the standard by which the Eighth Amendment is to be interpreted in death cases, but the high court also has before it the constitutionality of using the very chemicals employed in this State as a means of carrying out the death sentence and challenged in the instant action. Simply put, the Court would not issue this stay absent the Supreme Court’s grant of certiorari in Baze.” The judge’s nine-page ruling and stay order can be found [at this link]. Unless overturned by the Eleventh Circuit Court, the judge’s order would make it unnecessary for the Supreme Court to rule on a pending stay motion by Schwab.

Tennessee AG opines about alternative execution methods

As detailed in this article, local Tennessee prosecutors "have been calling on the state to use the electric chair as a back-up after a U.S. District Court in September found Tennessee's lethal injection procedures to be unconstitutional." But yesterday the state's attorney general in this written opinion concluded that the state cannot use its electric chair unless the defendant selects this method. Here is how the AG's opinion starts:

QUESTION

In light of the recent decision by the United States District Court for the Middle District of Tennessee holding unconstitutional Tennessee’s current three-drug protocol for carrying out executions by lethal injection, does Tenn. Code Ann. § 40-23-114(d) authorize the state now to proceed with an execution by means of electrocution when a death-sentenced prisoner has declined to exercise his statutory right to elect electrocution as the method of execution in his case?

OPINION

No. It is the opinion of this office that electrocution may be substituted as a method of execution for an inmate who has not chosen it only in the event that lethal injection is declared unconstitutional by the United States Supreme Court, Tennessee Supreme Court, or other appellate court specified in Tenn. Code Ann. § 40-23-114(d).